Wednesday, April 18, 2007

THE EROSION OF CHOICE

While the nation is distracted with a national tragedy, the Supreme Court has handed down a 5-4 opinion upholding a ban on the Partial Birth Abortion Ban Act.

This opinion won't affect most abortions performed in the United States. Nor does it eradicate a woman's right to choose.

But for women aborting a fetus as early as the twelfth week of pregnancy, the ban prevents them from undergoing what many respected medical groups -- namely, the American College of Obstetricians and Gynecologists -- have suggested is the safest, and sometimes a necessary, procedure.

While the Court's opinion isn't a reversal of Roe v. Wade, it clearly signals a new direction. The Supreme Court has never before restricted how an abortion can be performed. Before the Court delivered its smackdown this morning, at least half a dozen federal courts had ruled that the ban was an unconstitutional restriction on a woman's constitutional right guaranteed by the last 33 years of reproductive freedom jurisprudence.

Most horrifying of all, the opinion undoubtedly gives Congress and the states the green light to slowly erode other abortion-related rights until there is no meaningful reproductive freedom.

In my nightmare scenario, so many procedures will be eliminated and so many hoops will be propped up (e.g., age restrictions, second-trimester bans, outlawing government-funded counseling that mentions abortion, spousal consent requirements, etc.) that the anti-choice movement will have rendered Roe v. Wade worthless without even having it overturned.

Note that the majority consists of: Kennedy, Roberts, Alito, Scalia, and Thomas. It's fair to assume that before Alito or Roberts were appointed, Justice O'Connor would have joined the dissent.

As I've said before, President Bush's longest-lasting legacy will be his appointment of Justice Alito and Chief Justice Roberts, give or take the lingering effects of a war on terror.